Judicial Review for the Convicted Felon in Australia-A Consideration of Statutory Context and the Doctrine of Attainder

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ABSTRACT

The decision of Patsalis v State of New South Wales [2012] NSWCA 307 represents a fundamental development in the common law of Australia. The extent to which the Felons (Civil Proceedings) Act 1981 (NSW) applied to applications for judicial review brought by prisoners convicted of a serious indictable offence or a felony remained unclear before the decision of Patsalis in New South Wales.

This article examines some of the important implications which flow from the decision of Patsalis, such as the fact that "civil proceedings" in the statutory context of the Felons (Civil Proceedings) Act 1981 (NSW) (the FCPA) was held not to apply to applications for judicial review of administrative decisions brought by a prisoner convicted of a serious indictable offence of a felony who sought to challenge his of her incarceration. The article also examines the common law principle of attainder in light of the statutory enactment of the FCPA.

I INTRODUCTION

The judgment of Patsalis v State of New South Wales [2012] NSWCA 307 ('Patsalis') is a decision of significance for the law in New South Wales for various reasons. This paper will explore the implications of the judgment and examine some of the important legal principles that flow from it.

Patsalis represents a bastion of protection for the civil rights of prisoners in New South Wales convicted of serious indictable offences. Moreover, it provides an important analysis of the legal meaning of the phrase 'civil proceedings', delivers a useful discussion of important principles of statutory interpretation more generally and otherwise examines the effect of the common law principle of attainder in Australia.

II THE FACTS

On 24 September 1999, Michael Patsalis (the applicant) was convicted of murder. (1) On 23 February 2000, the applicant was sentenced to imprisonment for 21 years and 6 months, with a minimum term of 16 years. Accordingly, the applicant is serving a sentence for a serious indictable offence. (2)

On 9 May 2011 the applicant filed a statement of claim seeking damages for negligence from the State of New South Wales (the respondent). (3) The negligence was said to relate to the failure of the respondent to protect the applicant from an assault by another inmate, and also the conduct of the respondent in denying him access to his legal documents (the negligence proceedings). (4)

In accordance with section 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (the FCPA), the applicant sought leave to commence the negligence proceedings. (5) The statutory effect of section 4 of the FCPA is that a person who is in custody as a result of being convicted of a serious indictable offence is prohibited from instituting any 'civil proceedings' in any court except by leave of that court.

When the 'leave question' in accordance with section 4 of the FCPA came on for hearing, Schmidt J refused to grant the applicant leave to proceed with his substantive claim against the respondent for access to his legal documents. (6) In a judgment delivered on 26 July 2011, her Honour held that 'leave to commence proceedings in respect of the complaints as to the access given Mr Patsalis to his legal documents, must be refused as an abuse of process'. (7)

The applicant's substantive claim of access to his legal documents was said to be based upon his right of access to the courts and, by extrapolation, his right to petition the Governor under section 76 of the Crimes (Appeal and Review) Act 2001 (NSW) (CARA) 'for review of his conviction or sentence or the exercise of the Governor's pardoning power'. (8)

The applicant sought leave to appeal to the New South Wales Court of Appeal against the decision of Schmidt J 'refusing' the applicant leave to commence proceedings in relation to his claim for access to his legal documents (the appeal proceedings). (9) With the benefit of legal representation in the appeal proceedings, a primary contention advanced by the applicant was that in circumstances where a prisoner seeks judicial review of an administrative decision, section 4 of the FCPA had no application. …

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